1990 PLP 917 (SCMR)

S. USMAN ALI SHAH, J.‑‑Leave to appeal was granted to the appellant on 19‑3‑1986 to examine whether the learned Single Judge of the High Court of Sindh, while accepting the appeal of the respondent, correctly applied the principle of appreciation of evidence and setting aside the finding of fact of the Rent Controller. The dispute in this case relates to the two shops situated on a plot of land bearing No. C‑11/1 Malir Extension Colony owned by the plaintiff appellant and the defendant/respondent is a tenant of the said shops under the landlord. A third shop adjacent to the shops in dispute in the same building owned by the appellant is occupied by the landlord/appellant himself in which he carries on bicycle hiring business. The appellant had filed an ejectment application against the respondent before the Rent Controller, alleging therein that in view of his expanding business he requires both the shops in possession of the respondent, for his bona fide personal use and business. The respondent contested the said ejectment application and in his written statement he denied this allegation and contended that the plea of the appellant was not bona fide but what he wants actually is to demand increase in rent to which the respondent had declined. The learned Rent Controller on the pleadings of the parties framed the‑following issues:‑‑ (1) Whether the opponent was rented out an open plot and construction thereon has been raised by him? (2) Whether the applicant requires the premises in good faith for his personal use? (3) What should the order be? Both the parties filed their respective affidavits and adduced evidence in support of their respective claims. The learned Rent Controller after recording the evidence vide his order dated, 2‑1‑1984 partly allowed the ejectment application and concluded as under‑‑ "It is an admitted fact that the opponent has two shops in his possession and applicant runs the business of cycle in a shop having an area of 7' x 7' adjacent to the shops in dispute. Looking to the small area in possession of the applicant I am of considered opinion that the applicant requires some space. Accordingly I order that the opponent should vacate one shop adjacent to the shop in possession of applicant and hand over the possession of the same to the applicant for extension of his business within two months of this order." Being aggrieved the respondent challenged the order of the Rent Controller in appeal before the High Court of Sindh, Karachi. A learned Single Judge of the High Court vide impugned judgment accepted the appeal and set aside the order of the Rent Controller. We have heard both the learned counsel for the parties and have gone through the findings of the Courts below. The appellant's counsel mainly contended before us that the High Court was not justified in setting aside the finding of fact and also the evidence on the question of bona fide requirement of the landlord with regard to the shops in dispute. On going through the judgment of the High Court, we find that the landlord had pressed his demand for both the ,hops in dispute, for expansion of his business and he had tried to prove that the Fisting space for the running of his existing bicycles hiring business was insufficient. On the other side the learned counsel for the respondent also tried to prove that the shop in possession of the appellant was of a larger area and is "[1fficient to meet the requirements of his business. The High Court rejected the confidence of the two witnesses produced by the appellant in support of his case on the ground that their testimony was in identical terms and indicated that they were trying to improve the case of the appellant. The learned Single Judge while accepting appeal of the respondent held that the need of the landlord was not genuine because he is running a shop for hiring the bicycles and in the normal course of his business the bicycles would be hired and could not remain stocked all the day. A perusal of the record shows that the area of the shop in occupation of the appellant is 7 x 7 sq.ft. which was considered by the Rent Controller to be too small an area for the purposes of the business run by the appellant. A careful examination of the impugned judgment of the learned Single Judge reveals that in reassessing the evidence of the P.Ws. the learned Judge ignored the rule of evidence because in civil cases issues are normally determined by the evidence of fact. In the case in hand the learned Judge, in our view was not justified to discard the testimony of the two witnesses produced by the appellant in support ~' his case, merely on the abovementioned ground. It is an admitted fact that the appellant is running his bicycles hiring business in an adjacent shop having an area of 7 x 7 sq.ft, to the shops in dispute. he said shop with such a small dimension, in our opinion, is hardly sufficient for improving and expanding the business of the appellant which he' runs himself. Thus, there is no reason to disbelieve the contention of the appellant that he needs some more space, in good faith and for self‑use, in order to carry on his business progressively. Under the circumstances, this appeal is allowed. The judgment of the High Court dated 17‑9‑1985 is set aside. One of the shops granted by the Rent Controller to the appellant vide his judgment dated 2‑1‑1984 is restored to him. There shall be no order as to costs. A.A./M‑1315/S Appeal allowed.